Idaho follows national trend toward more secrecy

BOISE, Idaho (AP) – The Idaho Legislature followed a national trend toward increasing secrecy of government records over the past five years, passing twice as many laws restricting release of information as measures that increased access to documents, according to an Associated Press analysis.

Of the 60 bills affecting public records disclosure that were proposed by state lawmakers from 2001 through 2005, 33 passed. Of those, 22 created new or additional laws limiting the public’s ability to view records created by state or local governments and 11 created more openness in government records or meetings.

Only one of the new Idaho laws was in direct response to the Sept. 11, 2001 terrorist attacks, an event generally considered to be the starting point of a period of increased secrecy in government activities. Most of the other measures restricting access to Idaho public records were driven by an increased desire to protect privacy by restricting release of information on individuals that had been available in the public domain.

Those new privacy laws included classifying as confidential information on crime victims receiving compensation, some sex offender records, and basic information on voter registration cards, such as addresses and phone numbers.

That shift also reflected tendencies nationally.

“After 9/11, people were taking all sorts of government records off the Web and trying to close off public records, but that has died off over the past few years,” says David Cuillier, who teaches media law and public affairs reporting at the University of Idaho and who recently conducted a national survey on public records secrecy for Access Northwest, a nonpartisan research group at Washington State University’s Murrow School of Communication.

“Privacy invasion has been an increasing issue in citizens’ minds and probably legislators’ minds, even though the federal data on identity theft shows the crime doesn’t typically start with taking information from public records, it begins with a stolen wallet or mail.”

The Access Northwest survey completed March 4 asked 403 randomly selected adults from across the country questions on their attitudes toward openness in government and public records. Eight in 10 said democracy requires government to operate in the open and two-thirds said openness keeps government officials honest. Most respondents said the press should have access to several types of public records, from property tax rolls and elected officials’ expense accounts and e-mail to police reports and public utility records.

But in matters of homeland security, Cuillier said people he surveyed supported government curbs on press access to records that potentially could be used by terrorists.

“My study showed while people strongly support the idea of open government, the majority think it’s OK for government to close records if it’s going to protect us from terrorism,” he said. “A majority said we should leave it up to the government to decide what to leave open and what not to leave open.”

The pros and cons of that sentiment played out in the Idaho Legislature in the 2002 session that began three months after the Sept. 11 attacks. Then-Idaho Attorney General Al Lance asked lawmakers to approve a package of “anti-terrorism” bills, including one that would have let judges shut down any public record if state agencies argued the release of the information could threaten public or individual safety.

“There was a huge hysteria after 9/11 about how the terrorists were coming to get us and there was this rush to close everything down,” said Debora Kristensen, a Boise attorney who lobbied for the Idaho Press Club in the 2002 session. “The Press Club was saying no, no, no, this was bad policy, but there was a strong sentiment in favor of closing off all kinds of information.”

The measure passed the House but it was killed on a 6-3 vote in a Senate committee after some lawmakers questioned the need for such an open-ended opportunity for state agencies to close records. In its place, a compromise bill was adopted that prevents disclosure of documents related to public agency buildings or operational plans “when the disclosure of such information would jeopardize the safety of persons or the public safety.”

“The first attempt was so overly broad as to preclude release of anything,” said Roy Eiguren, a Boise attorney who represented the Allied Daily Newspapers in the 2002 Legislature. “After that was blocked in committee we were able to work with the attorney general to come up with something that wasn’t so all-encompassing.”

The battle between the Idaho press and lawmakers over open records in 2002 has since morphed into a fight over open meetings. In 2003, Republican majority lawmakers held six meetings of standing legislative committees in secret, claiming security issues and the Legislature’s inherent right to close a committee meeting to the public at any time.

The Idaho Press Club sued, arguing that the state constitution specifies the Legislature’s business must be conducted “openly, and not in secret session.”

In 2004, a state judge determined framers of the Idaho Constitution intended only the general floor sessions of the House and Senate should always be open, not the committee hearings. The media has appealed to the Idaho Supreme Court, which has yet to rule.

Cuillier said the tussles between press and politicians over access reflects a public interest in open democracy.

“If the public doesn’t support these ideas, there’s nothing stopping government from making everything secret,” he said.

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